Citation Nr: 1029883
Decision Date: 08/10/10 Archive Date: 08/24/10
DOCKET NO. 08-05 651 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for a malignant growth on
the base of the spine.
2. Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for a
musculoskeletal disorder of the low back.
3. Entitlement to service connection for a musculoskeletal
disorder of the low back, to include as secondary to service-
connected pilonidal cyst.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
L. Edwards, Associate Counsel
INTRODUCTION
The Veteran had active service from April 1964 to April 1967 and
from June 1967 to June 1971.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a March 2007 rating decision of the Department of
Veterans Affairs (VA), Regional Office (RO), in Nashville,
Tennessee.
In November 2009, the Board remanded this claim for additional
development. That development having been completed, the claim
is now partially ready for appellate review.
After reviewing the contentions and evidence of record, the Board
finds that the issues on appeal are more accurately stated as
listed on the title page of this decision.
The issue of entitlement to service connection for a
musculoskeletal disorder of the low back, to include as secondary
to service-connected pilonidal cyst is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The evidence does not show a current diagnosis of a malignant
growth on the base of the spine.
2. The claim for service connection for a musculoskeletal
disorder of the low back was originally denied by the RO in
September 1992. The Veteran was notified in writing of the
decision, but he did not initiate an appeal within the applicable
time limit.
3. Evidence pertaining to the Veteran's musculoskeletal disorder
of the low back received since the September 1992 RO decision was
not previously submitted, relates to an unestablished fact
necessary to substantiate the claim, is neither cumulative nor
redundant, and raises a reasonable possibility of substantiating
the claim.
CONCLUSIONS OF LAW
1. Service connection for a malignant growth on the base of the
spine is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
2002); 38 C.F.R. §§ 3.303 (2009).
2. The RO's September 1992 decision that denied service
connection for a musculoskeletal disorder of the low back is
final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103
(2009).
3. Evidence received since the September 1992 rating decision is
new and material, and the Veteran's claim for service connection
for a musculoskeletal disorder of the low back is reopened.
38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a)
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
In correspondence dated in June 2005 and December 2006, the RO
satisfied its duty to notify the Veteran under 38 U.S.C.A. §
5103(a) (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b)
(2009). Specifically, the RO notified the Veteran of:
information and evidence necessary to substantiate the claims;
information and evidence that VA would seek to provide; and
information and evidence that the Veteran was expected to
provide. The RO also notified the Veteran of the process by
which initial disability ratings and effective dates are
established. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Specific to the request to reopen, the claimant must be notified
of both the reopening criteria and the criteria for establishing
the underlying claim for service connection. See Kent v.
Nicholson, 20 Vet. App. 1 (2006). As the Board is taking
favorable action as to the claim to reopen for service connection
for a musculoskeletal disorder of the low back, to include as
secondary to service-connected pilonidal cyst, any deficient
notice for that claim is not prejudicial to the Veteran.
Service Connection for a Malignant Growth on the Base of the
Spine
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was aggravated
during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303(a) (2009).
In order to prevail on the issue of service connection for any
particular disability, there must be medical evidence of a
current disability; medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999);
see also Pond v. West, 12 Vet. App. 341, 346 (1999).
For the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." Continuity
of symptomatology is required only where the condition noted
during service is not, in fact, shown to be chronic, or where the
diagnosis of chronicity may be legitimately questioned. When the
fact of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support the
claim. 38 C.F.R. § 3.303 (2009).
Service connection for arthritis may be established based upon a
legal "presumption" by showing that it manifested itself to a
degree of 10 percent or more within one year from the date of
separation from service. 38 U.S.C.A. § 1112, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2009). In addition, service
connection may be granted for any disease diagnosed after service
when all the evidence establishes that the disease was incurred
in service. 38 C.F.R. § 3.303(d) (2009).
Service connection may be established on a secondary basis for a
disability that is proximately due to or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (2009).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability exists
and (2) that the current disability was either (a) caused by or
(b) aggravated by a service-connected disability. 38 C.F.R. §
3.310(a) (2009); Allen v. Brown, 7 Vet. App. 439 (1995).
The Veteran is claiming entitlement to service connection for a
malignant growth on the base of his spine.
The service treatment records have been reviewed. The Veteran's
entrance examination from January 1967 did not note any malignant
growths. Similarly, there are no symptoms, treatment, or
diagnosis of a malignant growth on the base of the spine during
service. The Veteran did have a pilonidal cyst in the gluteal
fold that was incised and drained four times during service. The
Veteran's separation examination from April 1971 did not note any
malignant growths.
The Veteran received service-connection for a pilonidal cyst in a
July 1971 rating decision.
Post-service VA outpatient records were reviewed, but the
objective medical evidence does not reveal a current diagnosis of
a malignant growth on the base of the spine. There is no
evidence of any treatment or reports of symptoms of a malignant
growth from separation from service in April 1971 to September
2006. As such, the post-service evidence does not reflect
complaints or treatment for a malignant growth for over three
decades following service. Evidence of a prolonged period
without medical complaint, and the amount of time that elapsed
since military service (more than ten years), can be considered
as evidence against the claim. Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000).
Where the medical evidence establishes that a Veteran does not
currently have a disorder for which service connection is sought,
service connection for that disorder is not authorized under the
statues governing Veterans' benefits. Brammer v. Derwinski, 3
Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App.
141, 144 (1992). There is no current diagnosis of a malignant
growth on the base of the spine. In the absence of a diagnosis,
the other elements of service connection for this claim need not
be addressed and this claim for service connection must be
denied.
In reaching this decision, the Board has also considered the
Veteran's own lay statements in support of his claim. While he
may well believe that he has a current malignant growth as a
result of service, as a layperson without any medical training
and expertise, the Veteran is simply not qualified to render a
medical opinion in this regard. See Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993). The Veteran is competent to comment on any
symptoms such as pain, but is not competent to attribute his pain
to a clinical diagnosis. See Jandreau v. Nicholson, 492 F. 3d
1372 (Fed. Cir. 2007).
The Board additionally notes that no medical examination has been
conducted or medical opinion obtained with respect to the
Veteran's claim for a malignant growth on the base of the spine.
However, the Board finds that the evidence, which reveals that
the Veteran does not have a current diagnosis of this disability
and does not reflect competent evidence showing a nexus between
service and the disorder at issue, warrants the conclusion that a
remand for an examination and/or opinion is not necessary to
decide the claim. See 38 C.F.R. § 3.159(c)(4). As post-service
treatment records provide no basis to grant this claim, the Board
finds no basis for a VA examination or medical opinion to be
obtained.
A VA examination or opinion is necessary if the evidence of
record: (a) contains competent evidence that the claimant has a
current disability, or persistent or recurrent symptoms of
disability; (b) establishes that the Veteran suffered an event,
injury, or disease in service; (c) indicates that the claimed
disability or symptoms may be associated with the established
event, injury, or disease in service or with another service-
connected disability, but d) does not contain sufficient medical
evidence for VA to make a decision on the claim. See 38 C.F.R. §
3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Simply
stated, the standards of McLendon do not apply to this claim
because there is no competent medical evidence that the claimant
has a current diagnosis of a malignant growth on the base of the
spine.
For these reasons and bases, the Board finds that the
preponderance of the evidence is against the Veteran's claim for
service connection for a malignant growth on the base of the
spine. As the preponderance of the evidence is against his
claim, the doctrine of reasonable doubt is not for application.
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the
appeal is denied.
Whether New and Material Evidence Has Been Submitted to Reopen
a Claim for Service Connection for Musculoskeletal Disorder of
the Low Back
Notwithstanding determinations by the RO that new and material
evidence has not been received to reopen the Veteran's claim, it
is noted that on its own, the Board is required to determine
whether new and material evidence has been presented. Barnett v.
Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The record, with respect to this claim, reflects that a claim for
service connection for a low back disorder was first denied in a
rating decision of September 1992. The Veteran was notified of
his right to appeal that decision in September 1992. The Veteran
did not file a timely notice of disagreement and subsequently,
the September 1992 rating decision became final when the Veteran
did not perfect his appeal within the statutory time limit.
Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the
Veteran's claim for service connection for a low back disorder
may only be opened if new and material evidence is submitted.
In this instance, since the September 1992 decision denied the
claim on the basis that there was no evidence of a link between
the Veteran's musculoskeletal low back disorder and active duty,
the Board finds that new and material evidence would consist of
evidence of a link between active duty and his current
musculoskeletal low back disorder.
Evidence received since the September 1992 rating decision
consists of numerous records and documents. Specifically, the
Veteran has submitted VA outpatient records showing that he has
recently been diagnosed with Diffuse Idiopathic Skeletal
Hyperostosis (DISH). See September 2004 lumbar spine x-ray.
Furthermore, the Board notes that the Veteran has sought
treatment for back pain throughout the years, and treatment notes
usually reference the Veteran's pilonidal cyst when discussing
his back pain. Based on the medical records, it is possible the
Veteran's back pain could be related to his service-connected
cyst.
As a result, it must be stated that this additional evidence is
neither cumulative nor redundant, and it is material since the
evidence raises the possibility of substantiating the claim of
service connection, including the possibility of secondary
service connection. See 38 C.F.R. § 3.156(a). The Board
determines that the claim of service connection for a
musculoskeletal disorder of the low back is reopened. The Board
has reopened the claim of service connection and is remanding the
claim, as will be discussed below.
ORDER
Service connection for a malignant growth on the base of the
spine is denied.
New and material evidence has been received to reopen the claim
of entitlement to service connection for a musculoskeletal
disorder of the low back; to this extent, the appeal is granted.
REMAND
The claim of service connection for a musculoskeletal disorder of
the low back has been reopened. In light of the evidence
presented, additional development is necessary.
The Board notes that the Veteran is service-connected for a
pilonidal cyst in the gluteal fold. Service records indicate the
Veteran reported back pain on his separation examination from
April 1971. Also, post-service records indicate the Veteran has
complained of lower back pain as a result of his cyst. See March
1990 and June 1990 VA outpatient notes. Additionally, the
Veteran has been diagnosed with diffuse idiopathic skeletal
hyperostosis. See September 2004 x-ray.
The Veteran has not yet been afforded a VA examination for this
disability. The VA has a duty to afford a Veteran a medical
examination or obtain a medical opinion when necessary to make a
decision on the claim. See 38 U.S.C.A. § 5103A(d). When the
medical evidence is not adequate, the VA must supplement the
record by seeking an advisory opinion or ordering another
examination. See McLendon v Principi, 20 Vet. App. 79 (2006). A
remand is necessary to afford the Veteran a VA examination with a
nexus opinion in order to ascertain whether the Veteran's current
back disability is related to service or his service-connected
pilonidal cyst.
Accordingly, the case is REMANDED for the following actions:
1. The RO/AMC shall obtain and associate
with the claims file all updated treatment
records.
2. After any additional records have been
obtained, the RO/AMC shall afford the
Veteran a VA examination for a
musculoskeletal disorder of the low back.
Any and all indicated evaluations,
studies, and tests deemed necessary by the
examiner should be accomplished.
The examiner is requested to review all
pertinent records associated with the
claims file, including service treatment
records, and offer comments and an opinion
addressing whether it is at least as
likely as not (i.e., probability of 50
percent or greater) that the Veteran's
current low back disorder had its onset
during service, is in any other way
causally related to service or is
proximately due to or a result of his
service-connected pilonidal cyst.
If the response is in the negative, is the
Veteran's low back disorder aggravated
(i.e., permanently worsened) by his
service-connected pilonidal cyst.
All opinions should be supported by a
clear rationale, and a discussion of the
facts and medical principles involved
would be of considerable assistance to the
Board. In doing so, the examiner should
acknowledge the Veteran's report of a
continuity of symptomatology. The claims
file must be provided to the examiner for
review. The examiner must state in the
examination report that the claims file
has been reviewed.
3. The RO/AMC will then review the
Veteran's claims file and ensure that the
foregoing development actions have been
conducted and completed in full, and that
no other notification or development
action, in addition to those directed
above, is required. If further action is
required, it should be undertaken prior to
further claim adjudication.
4. The RO/AMC will then readjudicate the
Veteran's claim. If the benefit sought on
appeal remains denied, the Veteran and his
representative should be provided with a
Supplemental Statement of the Case. An
appropriate period of time should be
allowed for response.
Thereafter, if appropriate, the case is to be returned to the
Board, following applicable appellate procedure. The Veteran
need take no action until he is so informed. He has the right to
submit additional evidence and argument on the matter or matters
the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999). The purposes of this remand are to obtain additional
information and comply with all due process considerations. No
inference should be drawn regarding the final disposition of this
claim as a result of this action.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs